Dear Editor,
On 27 June, 2011, the Caribbean Court of Justice handed down a landmark judgment in Florencio Marin and Jose Coye v. Attorney General of Belize; [2011] CCJ 9 (AJ).
The issue in that case for the CCJ to decide was whether the appellants (two former Ministers of Government of Belize) should be liable to pay damages to the State, for misfeasance of office. The Appellants were accused while in office, of transferring a number of parcels of State lands to a third party company, controlled by one of them, at an undervaluation of approximately US$1M.
The Court ruled that not only were the former public officers liable to pay the difference between what the lands had been sold for and their true market value, as compensatory damages to the people of Belize, but also exemplary or punitive damages, to punish them for what the Court termed a breach of the public trust. The cause of action the State succeeded in was misfeasance in office. That was defined as redress for infringements of rights by public officials utilising the powers vested in them for improper purposes.
The case is directly relevant to the present Pradoville II scandal and the multitude of similar cases by members of the previous administration. In that case, public officials (including the former President and several former Ministers of Government) used powers vested in them, for improper purposes, namely, to transfer a substantial portion of State lands to themselves and to develop them, exclusively utilising the resources of the State.
The present media reports suggest that the new Government has decided to use the case to found a criminal prosecution of the former Ministers. This would be unfortunate as the case is not a criminal case, but a civil one, utilising the civil tort misfeasance of public office. For the Government to waste time and resources to found a criminal prosecution on this basis would be a grave mistake. It is better to institute a civil claim for damages in the sum of the difference between the acquisition cost and the present market value, as well as exemplary or punitive damages for breach of the public trust. Additionally, the media reports suggest that in some instances, third party rights have been created. This should not affect the Government’s claim for damages as it can quite properly seek damages against the initial owners (the former Ministers) for their depriving the State of the true value of its property. So the Government need not waste resources seeking redress against third party purchasers, especially as this may not be available if the third parties were innocent purchasers for market value.
In my humble opinion, this would be very effective sanction, as it would simultaneously demonstrate the Government’s seriousness about punishing this type of misbehaviour, as well as depriving the perpetrators of the very thing they sought to obtain – money! They would be out of pocket in very serious terms. The Honourable Attorney General has a very useful precedent at his disposal, and should not allow others to seduce him to waste it in fruitless endeavours such as criminal prosecutions. This would only play into the perpetrators’ hands.
Yours faithfully,
Robert Badal.
